Letter to Hon . Leopold Morse, 

Member for the Fourth Massachusetts 
District , House of Representatives of the 
United States. 


By 

WILLIAM GRAY of Boston. 


FEBRUARY 22 , 1882. 









































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LETTER 



TO 


HOK LEOPOLD MORSE, 

MEMBER FOR TIIE FOURTH MASSACHUSETTS DISTRICT, HOUSE OF 
REPRESENTATIVES OF THE UNITED STATES. 


BY 

WILLIAM GRAY 

OF BOSTON. 



BOSTON : 

FRANKLIN PRESS : RAND, AYERY, & CO. 

1882. 



/ 

h J R. Hawley 

2iJa'03 





LETTER. 


Boston, Feb. 22, 1882. 
Hon. Leopold Morse, House of Representatives, Washington, D.C. 

My dear Sir, — A grandson of William Gray of Bos- 
ton, who died in 1825, I respectfully ask your attention to 
a subject long pending in Congress. I refer to the claims 
of citizens of the United States, originally against France, 
for spoliations upon American commerce prior to 1800, 
which were afterwards assumed by the United States, in 
consideration of the release by France of onerous obliga- 
tions under treaties with that nation. 

“As early as 1704 our plundered citizens obtained compensa- 
tion to the amount of more than ten million dollars, on account 
of British spoliations. Similar indemnities have been obtained 
since from Spain, Naples, Denmark, Mexico, and the South 
American States; while, by the famous convention of 1831, 
France contributed five million dollars to the satisfaction of 
spoliations under the continental system of Napoleon. Spain 
stipulated to pay for every ship or cargo taken within Spanish 
waters, even by the French, so that the French spoliations on 
our commerce, within Spanish waters, have been paid for; but 
French spoliations on our commerce elsewhere, before 1800, are 
still unredeemed. Such has been the fortune of claimants the 
most meritorious of all.” 

I cite this passage from a report made by Charles Sum- 
ner, Chairman of Committee on Foreign Affairs, to the 
Senate of the United States, April 4, 1864, first session, 
thirty-eighth Congress. 

The Eleventh Article of the Treaty of Alliance between 


4 


France and the United States, Feb. 6, 1778, is in these 
words : — 

“The two parties guarantee, mutually, from the present time 
and forever, against all other powers, to wit: The United 
States, to his Most Christian Majesty, the present possessions 
of the Crown of France in America, as well as those which it 
may acquire by the future treaty of peace. And his Most 
Christian Majesty guarantees, on his part, to the United States 
their liberty, sovereigntjq and independence, absolute and un- 
limited, as well in matters of government as commerce, and 
also their possessions, and the additions or conquests that their 
confederation may obtain during the war.” 

France fulfilled her guaranty to the United States of 
“ liberty, sovereignty, and independence, absolute and un- 
limited,” by a series of acts, which led to the surrender of 
Cornwallis at Yorktown to the combined forces of France 
and the United States, under Rochambeau and Washing- 
ton. And in the turmoil and excesses of the French 
Revolution France desired the performance by the United 
States of their guaranty in the Eleventh Article of the 
treaty. The commerce of the United States as neutrals 
was made an object of attack by orders in council, and 
decrees, emanating from European powers at war with 
each other, and depredations were committed upon our 
vessels and cargoes, which were unceasingly complained 
of, and for which compensation and indemnity were ulti- 
mately secured against every foreign aggressor. Mr. Jef- 
ferson, when Secretary of State, called upon the merchants 
of the United States to send their memorials to Washing- 

o 

ton, that the Government might be fully informed of every 
infraction of the law of nations injurious to our commerce. 
The same spirit which would not rest in peace until the 
Alabama claims were settled by arbitration, in recent 
times, in the earlier days of our Republic would not allow 
commerce to be crippled, or neutral rights invaded. 
Though our ancestors 44 were not yet hardened into the 


5 


bone of manhood, there was no sea which was not vexed 
by their commerce, no climate which was not witness to 
their toils.” 

During this period negotiations were had between 
France and the United States, to protect our commerce, 
and to provide for our release from the guaranty of the 
Eleventh Article of the treaty. One commission, of which 
John Marshall, afterwards Chief Justice of the United 
States, was a member, failed to reach a settlement. A 
second commission ultimately procured a release from our 
guaranty under the Eleventh Article, in consideration of 
the surrender by the United States of the claims of her 
citizens on France. The Senate of the United States 
adopted the words of Bonaparte, First Consul : “ Provided 
that by this retrenchment the two States renounce the 
respective pretensions which are the subject of the said 
article.” By this act the United States assumed the obli- 
gations of France to indemnify their citizens. They re- 
ceived as an equivalent a consideration beyond all price, 
in the release of an entangling alliance, which might at 
any time have exposed them to war. 

While negotiations were pending, on the 4th of Sep- 
tember, the Commissioners of France addressed a com- 
munication to the Commissioners of the United States, 
containing this clause : — 

“ The indemnities which shall be due by France to the citi- 
zens of the United States shall be paid for by the United 
States. And in return for which France yields the exclusive 
privilege resulting from the Seventeenth and Twenty- second 
Articles of the Treaty of Commerce, and from the rights of 
guaranty of the Eleventh Article of the Treaty of Alliance. 

Bonaparte. 

C. P. Claret Fleurieu. 

Roederer.” 

The Second Article of the Convention between France 
and the United States, Sept. 30, 1800, is in these words : — 


6 


“ The Ministers Plenipotentiary of the two parties not being 
able to agree at present respecting the Treaty of Alliance of 
6th of February, 1778, the Treaty of Amity and Commerce of 
the same date, and the Convention of the 14th of November, 
1788, nor upon the indemnities mutually due or claimed, the 
parties will negotiate further on these subjects at a convenient 
time ; and until they may have agreed upon these points, the 
said treaties and Convention shall have no operation.” 

The Senate of the United States did, by their resolution 
on the third day of February, 1801, consent to and advise 
the ratification of the Convention : provided the Second 
Article be expunged, and that the following Article be 
added or inserted : — 

“ It is agreed that the present Convention shall be in force 
for the term of eight years from the time of the exchange of 
the ratifications.” 

Bonaparte, First Consul, in the' name of the French 
people, consented on the 31st of July, 1801, “to accept, 
ratify, and confirm the above Convention, with the addi- 
tion importing that the Convention shall be in force for 
the space of eight years, and with the retrenchment of the 
Second Article : provided that by this retrenchment the 
two States renounce the respective pretensions which are 
the subject of the said article.” 

These ratifications, having been exchanged at Paris on 
the 31st of July, 1801, were again submitted to the Senate 
of the United States, which, on the 19th of December, 
1801, declared the Convention fully ratified, and returned 
it to the President for promulgation ; and it was promul- 
gated by the President’s proclamation of December 21, 
1801. 

Upon these facts, I submit the following propositions, 
with the authorities which support them : — 

First, At the date of the treaty of Sept. 30, 1800, these 
claims were valid and subsisting against prance. 

Second, They were released and extinguished by the 


7 


United States in that treaty, and by the manner of its rati- 
fication, for a valuable consideration to the United States, 
who by that act assumed the obligations of France to their 
own citizens. 

First, At the date of the treaty of Sept. 30, 1800, these 
claims were valid and subsisting against France. 

Mr. Madison, Secretary of State, says in a letter to Mr. 
Pinckney, Minister to Spain, 44 The claims from which 
France was released were admitted by France, and the 
release was for a valuable consideration in a correspondent 
release of the United States from certain claims on them.” 

Edward Livingston of Louisiana, the great jurist, in his 
report to the Senate, first session, twenty-first Congress, 
pp. 67, 68, says, — 

44 The Committee does not recollect that the justice of the 
claims against France has ever been denied. Should a doubt, - 
however, on that ground, suggest itself to any member of the 
Senate, it will be removed by the slightest attention to the acts 
of our Government, legislative, executive, and diplomatic. ... 
To deny the justice of claims for indemnity for such excesses, 
would be the assertion of a right, on the part of France, to 
indiscriminate plunder of neutral property. . . . But the jus- 
tice of the claim was not denied; and the necessity of pro- 
viding indemnity was expressly acknowledged. Of this there 
is the fullest evidence. 

“ Mr. Madison, in a letter to Mr. Pinckney, dated Feb. 6, 
1804, says expressly, ‘The claims from which France was 
released were admitted by France ; ’ so that the claims rest not 
only on their intrinsic justice, but on the express admission of 
it by the party concerned.” 

Second, They were released and extinguished by the 
United States in that treaty, and by the manner of its rati- 
fication, for a valuable consideration to the United States, 
who, by that act, assumed the obligations of France to 
their own citizens. 

Mr. Marion of South Carolina, in a report to the House 
of Representatives, Feb. 18, 1807, says, — 


8 


“ From a mature consideration of the subject, and from the 
best judgment your committee have been able to form on the 
case, they are of opinion that this Government, by expunging 
the Second Article of our Convention with France, of the 30th 
of September, 1800, became bound to indemnify the memorial- 
ists for their just claims, which they otherwise rightfully would 
have had on the Government of France, for the spoliations com- 
mitted on their commerce by the illegal captures made by the 
cruisers and other armed vessels of that power, in violation of 
the law of nations, and in breach of treaties then existing be- 
tween the two nations ; which claims they w r ere, by the rejection 
of the said article of the convention, forever barred from pre- 
senting to the Government of France for compensation.” 

Napoleon, at St. Helena, speaking to Gourgaud on this 
subject, said that, “ The suppression of the second article 
of the convention of 1800 at once put an end to the privi- 
leges which France had possessed by the treaty of 1778, 
and annulled the just claims that America might have 
made for injuries done in time of peace.” 

And upon a similar proposition of the renunciation of 
these claims, John Marshall said : — 

“ If the envoys renounced them, or did not, by an article in 
the treaty, save them, the United States would thereby become 
liable for them to their citizens.” — Cushing s Report , Appendix 
4, 1840, first session, Twenty-sixth Congress. 

And again Chief Justice Marshall said, — 

“ Having been connected with the events of the period, and 
conversant with the circumstances under which the claims 
arose, he was, from his own knowledge, satisfied that there was 
the strongest obligation on the Government to compensate the 
sufferers by the French spoliations.” “And distinctly and 
positively, that the United States ought to make payment of 
these claims.” — Appendix to Clayton's Speech , Senate , 1846. 
Sumner s Report, p. 27. 

Timothy Pickering, Secretary of State under Washing- 
ton and John Adams, wrote in the instructions to Messrs. 
Pinckney, Marshall, and Gerry, commissioners of the 
United States : — 


9 


“Our guaranty of the possessions of France in America will 
perpetually expose us to the risk and expense of war, or to 
disputes and questions concerning our national faith.” — July 
15, 1797. p. 102, Sen. Doc., first session , Nineteenth Conyress. 

And again Mr. Pickering said, — 

“ The Government bartered the just claims of our merchants 
for a restoration of the old treaties, especially the burdensome 
treaty of alliance, by which we were bound to guarantee the 
French territories in America.” — Appendix to Clayton s Speech , 
Senate , 1846. 

Henry Clay, Secretary of State, in answering a call 
upon the President, John Quincy Adams, for information 
as to papers in the archives of the Department, said, — 

“ The pretensions of the United States arose out of the 
spoliations under color of French authority in contravention to 
law and existing treaties. Those of France sprang from the 
Treaty of Alliance of the 6th of February, 1778, the Treaty of 
Amity and Commerce of the same date, and the Convention of 
the 16th November, 1788. Whatever obligations or indemni- 
ties from those sources either party had a right to demand, were 
respectively waived and abandoned, and the consideration 
which induced one party to renounce his pretensions was that 
of the renunciation by the other party of his pretensions.” — 
Exec. Doc., French Spo., 1826, p. 7. 

The report of Edward Livingston, Feb. 22, 1830, first 
session, Twenty-first Congress, to the Senate, says, — 

“ That the final result of the negotiation was the abandon- 
ment of the private claims, as a consideration for exonerating 
the United States from the national obligations imposed by the 
treaties and conventions with France, is abundantly obvious. 
These were the only objects of the second article. These had 
been, from the beginning to the end of the negotiation, the two 
objects of counter claim. ... It was declared by one party, 
and solemnly acknowledged by the other, that they were mutu- 
ally released ; and, finally, it has been repeatedly stated by the 
agents of our Government, that the one was given up as an 
equivalent for the other. . . . Before the convention was rati- 


10 


fied, Mr. Robert R. Livingston, our minister in France, 
writes : — 

“ 4 France is greatly interested in our guaranty of their 
islands, particularly since the changes that have taken place 
there. I do not, therefore, wonder at the delay of the ratifica- 
tion ; nor should I be surprised if she consents to purchase it 
by the restoration of the captured vessels.’ 

“These proofs might be greatly multiplied; but the commit- 
tee think it is sufficiently shown that the claim for indemnities 
was surrendered as an equivalent for the discharge of the 
United States from its heavy national obligations, and for the 
damages that were due for their preceding non-performance of • 
them. If so, can there be a doubt, independent of the Consti- 
tutional provision, that the sufferers are entitled to indemnity ? 
Under that provision, is not this right converted into one that 
we are under the most solemn obligation to satisfy ? ” 

I now ask your attention to the occurrences since the 
President’s proclamation of the Convention of Sept. 30, 
1800, on the 21st of December, 1801. 

At the first session of Congress then succeeding, being 
the first session of the Seventh Congress, memorials were 
presented to the Senate and House of Representatives, 
between Feb. 5, 1802, and April 23, 1802, by merchants 
in Baltimore, Philadelphia, Alexandria, Massachusetts, 
New York, Virginia, Connecticut, North Carolina, South 
Carolina, New Hampshire, and the District of Maine. 
Nearly all the above-mentioned memorials were destroyed 
by fire, with the Capitol, by the British army, in 1814; 
and, no record having been kept of the signers, the list in 
the Appendix to the Report of the Committee on Foreign 
Affairs to the Senate, April 4, 1864, first session, Thirty- 
eighth Congress, is so far imperfect. The latter list, from 
pp. 46 to 147 inclusive, of memorials presented to the Sen- 
ate and House of Representatives, shows their vitality, and 
the confidence of the claimants in the justice of their 
cause. Every one of the original thirteen States in the 
Union has expressed, by resolution, its conviction that 
they ought to be paid by the United States. 


11 


John Quincy Adams, when President, in answer to a 
call of the Senate of the United States, communicated a 
report of Henry Clay, Secretary of State, with copies of 
the documents in the archives of the Government, filling 
an entire volume. — May 20, 1826. Senate Documents , 
first session , Nineteenth Congress. 

Twenty-two reports have been made to the Senate by 
its committees, of which only one was adverse. 

Nineteen reports have been made to the House by its 
committees, of which only two were adverse. 

No adverse report has been made since President 
Adams sent his communication to the Senate, May 20, 
1826, but thirty-six reports, the entire number, have been 
in favor of payment of the claims. 

The Senate has passed six bills for their payment ; the 
House passed two of these six bills ; President Polk vetoed 
one, and President Pierce the other. 

The three adverse reports were made March 3, 1818, 
Jan. 31, 1822, and March 25, 1824; and I refer to them, 
that you may understand that they have not been over- 
looked. They are very brief ; they contain no discussion 
of facts or principles, but simply recommend a rejection of 
the claims. 

The veto of President Polk, on the 8th of August, 1846, 
first session, Twenty-ninth Congress, is less than two and a 
half pages in length. Pie refers to the short time inter- 
vening between the passage of the bill by Congress and 
the approaching close of their session, as well as other 
official duties, as not permitting him to extend his exami- 
nation to the subject in its minute details. His objections 
are, 1. The lapse of time, and the non-payment of the 
claims, and 2. That he has not been able to satisfy him- 
self that the Government has become in any way responsi- 
ble for them, 

He presents in strong language the condition of the 
finances at that time. The war with Mexico was pend- 


12 


ing ; the Government was borrowing money to carry it on, 
and thereby increasing the public debt. And be especially 
objected to a provision of payment, by conveying portions 
of the public domain to the claimants, as constituting a 
mortgage upon the public lands in the new States, in the 
hands of non-residents, and tending to interfere with the 
sales by the Government to actual settlers. 

The veto of President Pierce was more full in its details, 
and states bis position, which was entirely at variance with 
the recorded opinions of the public men who preceded 
him, and who had taken part in the negotiations, as well 
as of the jurists of a later day. 

You are aware that, in the House of Representatives 
at Washington, at the present session, bills to provide for 
ascertaining and settling the claims of American citizens 
for spoliations by the French prior to the^thirty-first day of 
July, 1801, have been referred to the Committee on For- 
eign Affairs, and are now before that committee. 

As one conversant by tradition from my early age with 
the history of these claims, as one of the last of my gener- 
ation with an interest in them, I earnestly desire to do all 
that in me lies to secure that justice which is due to the 
claimants, and to the integrity and honor of our Govern- 
ment. 

I am very respectfully yours, 

WILLIAM GRAY. 

Note. — I invite your especial attention to Sumner’s report to the 
Senate, April 4, 18G4, first session, Thirty-eighth Congress; with 
appendix containing a list of all reports made to either branch of 
Congress, and a list of all memorials to either branch, since 1814, 
which latter list covers more than one hundred phges. 

Livingston’s report to the Senate, Feb. 22, 1830, first session, 
Twenty-first Congress, containing a masterly discussion of the whole 
subject. 

President Adams’s message, of May 20, 1826, with documents fill- 
ing a volume, Senate Documents, first session, Nineteenth Congress. 

Cushing’s report to House, April 4, 1840, first session, Twenty- 
sixth Congress. 






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